High court set for showdown

By Don Finley :
March 24, 2012
: Updated: March 25, 2012 4:59am

Jerry Fielder, a cancer patient who is able to buy health insurance for her pre-existing condition due to provisions in the Affordable Health Care Act, stands in her storefront on March 22, 2012.

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Arguing the Affordable Care Act

Beginning Monday, the U.S. Supreme Court will hear arguments on four issues, including the constitutionality of two major parts of the Affordable Care Act, passed by Congress two years ago. Texas and 25 other states have sued to overturn the law.

1. Mandate: The individual mandate requires most people to have a minimum level of health coverage for themselves and their legal dependents beginning in 2014 — or pay a penalty.

2. Medicaid: Jointly funded by the states and federal government, Medicaid provides health insurance to the poor. In Texas, Medicaid is largely a program for children and pregnant women. The law would expand that to nearly all people younger than 65 with incomes up to 133 percent of the federal poverty level.

3. Severability: If the court strikes down the individual mandate, must it strike down the entire law?

4. Timing: Can the Supreme Court make a ruling now, or must it wait until the mandate’s penalties go into effect in 2015? Some argue the federal Anti-Injunction Act says they must wait.

Source: Kaiser Family Health Foundation

Two years after it was enacted, and with Americans still passionately divided, the U.S. Supreme Court is set to hear arguments beginning Monday on President Barack Obama's landmark health care reform law.

San Antonio — where one in six workers is employed in health care or medical research and 24 percent of residents lack health insurance — has a big stake in the outcome. Texas is one of 26 states that have sued to overturn the law.

With a nod to the importance of the case, the Supreme Court has allotted six hours over three days to hear oral arguments, instead of the usual one hour. A ruling is expected by early summer.

Texas Attorney General Greg Abbott, who will attend the hearing, said Texas is challenging the law for two reasons: the part of the law that requires almost everyone to buy insurance or pay a fine, and another part that expands Medicaid by millions of adults.

“Never before in the history of the country has it been imposed on Americans to go out and purchase a product,” Abbott said in an interview. “If that mandate is upheld, there will be virtually no limit to federal power and the ability to compel Americans to purchase whatever Congress feels like making Americans purchase.”

Marge Petty, who heads the U.S. Department of Health and Human Services region that includes Texas, said at a San Antonio event last week, “We're very confident that the Supreme Court is going to support the health care law.”

While the most sweeping parts of the law have yet to kick in, a number of provisions already have.

In its first two years, the law has eliminated lifetime caps on health benefits, required that screenings and vaccines be covered with no out-of-pocket costs, and allowed young adults up to age 26 to remain on their parents' policies.

It also has helped some businesses pay the cost of covering employees and retirees and offered more generous drug benefits to Medicare recipients.

Jerry Fielder, 63, has already benefited from the law. The small-business owner signed up for a newly available pre-existing condition insurance plan offered by the federal government.

For years, she and her husband tried to find insurance on the open market but were turned down because of his heart condition, she said. When he required open heart surgery in 2003, they paid $73,500 in cash — exhausting their savings and borrowing against their business and from family members.

Then, in 2009, she was diagnosed with lymphoma. It went untreated for more than a year.

Their family income was too high to qualify for discounted care through the tax-supported University Health System, and they found that even nonprofit cancer clinics wouldn't treat her without thousands of dollars paid upfront.

“When we heard about Obamacare, we were like — my gosh, maybe this will work,” she said. “And in the meantime I'm just getting sicker and sicker. The tumors are growing and getting bigger; it's in the bloodstream and the bone marrow. I was sleeping all day and couldn't move.”

Only about 4,000 Texans have taken advantage of the little-known plan Fielder signed up for in October, allowing her to finally undergo chemotherapy and radiation treatment. To qualify, beneficiaries must have been uninsured for at least six months. She pays $426 per month for herself. Her husband turned 65 and qualifies for Medicare this year.

“Of course, people tell you, ‘They have to treat you.' Not true,” Fielder said. “They do not have to treat you. The Hippocratic oath doesn't say they have to treat you. It just says do no harm. And sometimes they won't even look at you.”

San Antonio precedent

Among previous Supreme Court rulings that the justices will weigh in deciding the health care case is one from San Antonio, Garcia vs. San Antonio Metropolitan Transit Authority (since renamed VIA).

Bus driver Joe Garcia and some co-workers sued to require the transit authority to pay them overtime after working more than 40 hours per week as required under federal law. The authority argued that as a local government service it was exempt from federal regulation.

In 1985, the court ruled 5-4 that under the Commerce Clause of the U.S. Constitution, the federal government can regulate almost any economic activity, including that of local governments.

In the opening paragraphs of their petition in the health care reform case, the states asked whether the current justices will base their ruling on a broad interpretation of the Commerce Clause as the court did in the Garcia case, or on more recent, narrower interpretations.

But Abbott said what's different about forcing people to buy insurance is that Congress is regulating inactivity rather than activity.

“The issue here is that Congress, by imposing the individual mandate, is forcing people who otherwise are choosing to be inactive in the health care market,” Abbott said. “It's forcing them into the stream of commerce and then regulating them. That is what makes the Obamacare law so dangerous and so unprecedented, and should make the court reticent to uphold it.”

The Obama administration argues that it's not just a matter of people choosing not to buy insurance. When those people are sick or injured, everyone else ends up paying for their care through cost shifting and higher taxes.

“People say, ‘I'm healthy right now. Why should I (buy insurance to) cover the $500,000 treatment?' knowing full well they'll demand the $500,000 treatment when they need it. And they'll get it,” Johnson said.

Instead of the Affordable Care Act, Johnson said, “I would have called this the Anti-Deadbeat Fiscal Responsibility Bill.”

The two sides will also argue whether the fine for not buying insurance is a tax or a penalty. The government says it's a tax and within its powers under the tax code. The plaintiffs say it's a civil penalty and unconstitutional.

The states want the court also to strike down the law's Medicaid expansion, arguing the federal government is using coercion by threatening to withhold all Medicaid funds unless the states cover more people. The federal government says it already attaches such conditions and is within its rights to do so.

With states facing a series of deadlines to comply with different parts of the law, the Supreme Court put the case on a fast track.

“The expectation has been a June decision,” said Anne Dunkelberg, associate director of the Center for Public Policy Priorities, an Austin-based advocacy group. “We're starting to hear more and more that it could even be early July. But no one is really wanting to handicap the decision of the Supreme Court, which is probably a smart thing.”

A divided public

While the law has its vocal defenders, its most visible effect may be the anger it has triggered — shaping the tea party movement and rewarding Republicans in the 2010 midterm elections.

“The frustration that we felt, that the tea partyers across the country felt, was that Congress and its politicians were merrily enacting a far-reaching law, and they weren't listening to us,” San Antonio Tea Party President George Rodriguez. said.

Polls show Americans almost evenly divided on the Affordable Care Act, although in Texas opposition has been greater. A 2010 UT/Texas Tribune poll found 64 percent of people statewide disapproved of the law. Among Republicans, the disapproval rate was 94 percent.

Many local doctors — already frustrated by shrinking reimbursement rates and red tape — are opposed to the expanded role of government in the new law, said Dr. Jesse Moss Jr., an ear, nose and throat specialist and immediate past-president of the Bexar County Medical Society.

“Most physicians are afraid that if the government takes over, they will lose total control,” Moss said. “And in fact we've already lost control because the insurance companies tell us what to do. Now I have to get permission to do everything.”

Still, Moss sees a few good things the law does, such as allowing young adults to stay on their parents' plans and equalizing the cost of insurance between men and women.

“The way the thing is set up it offers promises that are not keepable,” Smith said. “President Obama said time after time that if you like your doctor, you keep your doctor. If you like your insurance, you keep your insurance. This does neither. Already, the number of doctors that will see Medicare patients is decreasing steadily.”

Dr. Robert Luedecke, a local anesthesiologist, sees flaws but supports the plan.

“I have voted for Republicans and I have voted for Democrats, and I support Obamacare because it helps improve a lot of our problems,” he said. “The Affordable Care Act is far from perfect, but in my opinion as a physician who has worked on health care reform for many years, it would be foolish to repeal it.”

As for Fielder, she said she's been criticized by people for buying coverage under the pre-existing insurance plan. “I've had people ask me, why did I accept that socialized medicine? And these are people on Medicare and in military. And I thought, ‘What do you think yours is?'”